5.  The applicants, Mr and Mrs Van Colle, are British nationals who were born in 1945 and 1946, respectively. They are married and live in Middlesex. The application concerns the murder in 2000 of their son, Giles Van Colle, who was born in 1975.
6.  In March 1999 Detective Constable (“DC”) Ridley arrested Mr Brougham (who had numerous aliases) on suspicion of theft from “Southern Counties”. He was released without charge.
7.  In September 1999 Giles Van Colle, an optometrist, hired Mr Brougham who was using the alias Lee Jordan and who thereby concealed a criminal record (common assault in 1993, for which he was fined £156 (pounds sterling), and disorderly behaviour in 1999). When Giles Van Colle raised with Mr Brougham a query about his national insurance number, the latter reacted in an aggressive manner, raising his voice and trapping Giles Van Colle against a wall. On 24 December 1999 Mr Brougham did not turn up for work and never returned. Giles Van Colle wrote to him requiring him to pay for repairs to defective equipment which Giles Van Colle thought was Mr Brougham’s fault and referring to a possible claim in the small claims court. Mr Brougham did not reply.
8.  On 17 February 2000 DC Ridley again arrested Mr Brougham on suspicion of theft from Southern Counties and searched his garage. Optical equipment was found. Giles Van Colle later identified some of the property as his own in statements to the police. A police officer told the second applicant that Mr Brougham was “a nasty piece of work” who was wanted elsewhere by the police.
9.  On 23 April 2000 Mr Brougham was charged with three offences of theft and obtaining property by deception. He was bailed unconditionally. The victims were said to be Giles Van Colle, Southern Counties and Alpha Optical. The latter company was owned by a Mr P and a supplier of Giles Van Colle. The total amount involved was £4000 and the material allegedly stolen from Giles Van Colle was worth approximately £500.
10.  In April 2000 Mr Brougham was convicted of theft (retaining a hire vehicle beyond the hire period).
11.  During the summer of 2000 Mr Brougham offered Mr H (Southern Counties) the sum of £1000 not to give evidence against him. Mr H did not report this and it emerged only after the murder of Giles Van Colle.
12.  On 10 August 2000 Mr Brougham telephoned Mr P and offered to pay £650 for the Alpha Optical material. An arrangement was made for Mr Brougham to meet a colleague the next day but Mr Brougham cancelled it. Mr P reported this to DC Ridley who took statements from Mr P and his colleague. These statements were discussed by DC Ridley with prosecution counsel at a directions hearing at a Crown Court on 20 September 2000 and were sent by him to the Crown Prosecution Service (“CPS”).
13.  On 24 September 2000 Giles Van Colle’s car was set on fire. A fireman expressed the view that the fire had started accidentally so that Giles Van Colle did not suspect arson and did not report the incident to DC Ridley.
14.  On 13 October 2000 Mr Brougham telephoned Mr P and offered him a bribe not to give evidence. Mr P immediately reported this to DC Ridley who advised him to refuse any such offers.
15.  On 13 October 2000 Mr Brougham also telephoned Giles Van Colle at his practice and said words to the effect: “I know where you live. I know where your businesses are and where your parents live. If you don’t drop the charges you will be in danger”. A customer of Giles Van Colle present when the call came through later gave evidence to the High Court that Giles Van Colle told him he had just received a “death threat” from a former employee and was quite shocked. Giles Van Colle dialled the emergency services number. The police officer noted the above threat, recording that:
“The voice sounded to the victim like a former thieving employee ... also known as Daniel Brougham ... who is currently under investigation by Dave Ridley ... in connection with various acts of dishonesty but as far as the victim knows no charges have been made as yet.”
16.  Giles Van Colle was told to report the threat to DC Ridley. He did so between 16 and 18 October 2000 and DC Ridley also made a contemporary note to much the same effect:
“Mr Van Colle – know where you live, businesses are – parents live if you don’t drop the charges you’ll be in danger – aggressively said ...
Sounded like Lee Jordan – employee – spoke - quietly - malice – intent – foreign accent like Lee J’s.”
17.  On about 17 October 2000 Mr Brougham visited a Mr A (Southern Counties) and offered him £400 not to give evidence. Mr A refused but did not report the matter to DC Ridley.
18.  On 19 October 2000 DC Ridley took statements from Giles Van Colle and Mr P. In his statement Giles Van Colle said that he believed the caller was Mr Brougham because of the accent and because he had no involvement in any other legal matter whether civil or criminal and he described himself as having been “totally shaken up” by the call. DC Ridley stated during later disciplinary proceedings that, while Giles Van Colle believed it was Mr Brougham, he was not definite and DC Ridley would have expected him to be definite if it really was Mr Brougham since they had worked together for a period of time. Mr P had not described Mr Brougham as threatening. DC Ridley sent the CPS a copy of the statements.
19.  On 25 October 2000 the trial was listed for the week commencing 27 October 2000. DC Ridley spoke to prosecution counsel about the events of 13 October 2000 and the statements taken. DC Ridley understood from this discussion that the best use of the statements was for them to be served in support of the theft prosecution.
20.  On 28 October 2000 Mr P’s wife’s car was set alight. An Automobile Association inspector concluded that the fire might have been caused accidentally. In the early hours of 29 October 2000 there was also a fire at Mr P’s business premises (an unlocked outbuilding used to store material of little value). The fire officer was inconclusive as to the cause of the fire. When Mr P reported both fires to DC Ridley, asking if Mr Brougham could be responsible, DC Ridley considered it unlikely and advised Mr P, if he had concerns, to contact the Metropolitan Police Service which, on 4 November 2000, informed him that there was no evidence of arson. It was later, during the investigation into Giles Van Colle’s murder in 2001 that the relevant experts found that both fires had been started deliberately.
21.  On 5 November 2000 DC Ridley was seconded to another station on an urgent unconnected murder investigation.
22.  In preparation for the theft trial, on 9 November 2000 the CPS served notices of additional evidence on Mr Brougham which contained the statements of Giles Van Colle and Mr P of 19 October 2000. The High Court later found that Mr Brougham was unaware of the notice until 22 November and that, in any event, service of the two statements, without more, would have reassured Mr Brougham that no further action was being contemplated by the police in relation to his attempts to prevent the witnesses from testifying.
23.  On 9 November 2000 Mr Brougham telephoned Giles Van Colle. The latter was sure that Mr Brougham was the caller. Mr Brougham said:
“Give Alpha Optical a call and get them to drop the charges, you motherfucker ... Do you hear me? Do you hear me?”.
24.  Giles Van Colle did not respond and Mr Brougham hung up. On the same day Giles Van Colle left a message on DC Ridley’s answerphone indicating his concern and stating that he would contact DC Ridley on his mobile.
25.  By letter dated 10 November 2000 Giles Van Colle’s insurers notified him of an investigator’s finding that his car fire was consistent with a “malicious vandal attack”. Giles Van Colle did not see a link between this and Mr Brougham and did not report the result. On the same day, he received a standard letter from the police indicating that his evidence was crucial and that he was bound as a witness to attend at court.
26.  It was later found by the High Court (as it was disputed) that it was more likely than not that Giles Van Colle made mobile telephone contact with DC Ridley before 17 November 2000 as regards the telephone call of 9 November 2000. DC Ridley accepted that on that date he requested Giles Van Colle to send him a written account of that telephone call of 9 November. On 19 November 2000 Giles Van Colle wrote the account. On 20 November he sent the account by facsimile to the police station. On 21 November a police officer gave it to DC Ridley and, at approximately 15.00 on 22 November, DC Ridley spoke to Giles Van Colle and arranged a meeting for 23 November 2000 in order to take a statement. DC Ridley later confirmed that he intended arresting Mr Brougham on witness intimidation charges after obtaining Giles Van Colle’s statement.
27.  At approximately 19.30 on 22 November 2000 Giles Van Colle was shot dead by Mr Brougham as he was leaving work.
28.  Mr Brougham was arrested and charged with the murder of Giles Van Colle. He was released on bail. In March 2002 Mr Brougham was convicted of his murder and sentenced.
29.  On 12 June 2003 the Panel (comprising a Deputy Chief Constable and two Superintendents) found DC Ridley guilty of failing to perform his duties conscientiously and diligently in connection with the intimidation of Giles Van Colle and Mr P. The Panel considered, inter alia, the following allegations against DC Ridley, namely that he:
“1. failed to investigate thoroughly whether offences of intimidation of witnesses and doing acts tending and intended to pervert the course of public justice had been committed; 2. failed to analyse the available evidence carefully, both individually and with others, through proper channels of line management; ...
30.  The Panel found that the relevant events amounted to an “escalating situation of intimidation” as regards Messrs P and Van Colle and that DC Ridley was in a “unique position” during that time “with the fullest picture of the developing situation”. The Panel found that during that period he had failed to “perform his duties conscientiously and diligently in connection with the improper contacts made with these witnesses”. As to the specific elements of the charge: 1. The Panel accept that DC Ridley did obtain statements when the inappropriate approaches to witnesses were reported to him by witnesses. [H]owever, the Panel’s view is that an investigation includes seeing this through to a satisfactory conclusion. ... it was apparent that the 2 phone calls to [Mr P] and Van Colle on 13 October [the] subject of statements taken on the 19 October did amount to substantive offences of witness intimidation and attempting to pervert the course of justice. In a full and proper investigation, the public would at least have expected contact with Mr Brougham in an attempt to prevent recurrences, but more probably he should have been arrested.
Furthermore, on the 29 October when [Mr P] reported the 2 fires ... a thorough investigation would have taken account of previous incidents and initiated a more detailed examination of the circumstances. 2. The Panel felt that on the evidence presented, the officer failed to adequately analyse and properly identify possible links between events, that would have resulted in a different course of action, had he done so. In particular, he failed to identify on 13 October that the calls to [Mr P] and Mr Van Colle were probably both made by Mr Brougham. Further on 29 October 2000 he failed to analyse and assess the information regarding the two fires in the context of the previous threats and intimidation.
In respect of the final call from Van Colle the officer stated he was happy to wait to make his statement. However, DC Ridley was in possession of additional facts i.e. the fires, which may have affected Van Colle’s level of concern. This issue merited greater urgency. The Panel acknowledged the informality of the line management arrangements presented in the evidence and that none of his immediate line managers contradicted the actions the officer was undertaking and that he drew comfort from this together with discussions he had with counsel at court in respect of this case.
... 4. On the basis of the 2nd statement taken from [Mr P] on 19 October the Panel [is] of the view that there was sufficient evidence to arrest for attempting to pervert the course of justice. The Panel is also of the view that in the case of Van Colle there was evidence sufficient to justify grounds for arrest. It is the view of the Panel that an arrest under these circumstances was both necessary and proportionate and was likely to have been beneficial to the ultimate outcome of the case. It is acknowledged that the officer through his counsel accepted that he did make a wrong decision about not arresting Mr Brougham and the panel accepts that there would have been no guarantee that this would have averted the ultimate tragedy.”
31.  The Panel fined DC Ridley 5 days’ pay noting, inter alia, his excellent service record, that the findings related to errors of judgment and not to malicious or dishonest acts and the mitigation given on his behalf.
32.  The applicants (the first applicant being the administrator of the deceased’s estate) brought a claim against the Chief Constable of the Hertfordshire Police under sections 6 and 7 of the HRA claiming damages for a breach of Articles 2 and 8 of the Convention. The defence accepted the findings of the Panel and that DC Ridley gave inadequate consideration to the steps he could have taken in response to the threats reported to him. However, the claim was defended on the basis that the criticisms of DC Ridley’s conduct were made with the benefit of hindsight; that at the time of the murder no-one could reasonably have predicted that Mr Brougham would take such a drastic step; and that the circumstances surrounding DC Ridley’s admitted “errors of judgment” or “operational errors” could not be said to be so exceptional as to be incompatible with Giles Van Colle’s Convention rights and unlawful under the HRA.
33.  The trial was held from 7-15 June 2005. The trial judge died before delivering judgment. The parties agreed that the case could be concluded by a new judge on the basis of the transcript and the documents.
34.  On 10 March 2006 the High Court delivered its judgment. There was little dispute on the facts. The court found that the respondent acted in violation of Articles 2 and 8 by failing to discharge the positive obligation on the police to protect the life of Giles Van Colle and it awarded damages to Giles Van Colle’s estate and to the applicants.
35. The High Court identified the legal principles to be derived from Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998-VIII) as to the scope of the positive obligation under Article 2 to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another. The court appeared to adopt the principles drawn from the judgment of Auld J in R(Bloggs61) v. Secretary of State for the Home Department ([2003] 1WLR 2724) and, in particular, accepted that:
“(5) Where it is the conduct of the state authorities which has itself exposed an individual to the risk to his life, including for example where the individual is in a special category of vulnerable persons, or of persons required by the state to perform certain duties on its behalf which may expose them to risk, and who is therefore entitled to expect a reasonable level of protection as a result, the Osman threshold of a real and immediate risk in such circumstances is too high. If there is a risk on the facts, then it is a real risk, and "immediate" can mean just that the risk is present and continuing at the material time, depending on the circumstances. If a risk to the life of such an individual is established, the Court should therefore apply principles of common sense and common humanity in determining whether, in the particular factual circumstances of each case, the threshold of risk has been crossed for the positive obligation in Article 2 to protect life to be engaged.”
36.  As to the telephone call of 13 October 2000, the High Court found:
“It is accepted by the Defendant both that DC Ridley took no further steps at this time in response to the threat to [Giles Van Colle] made by Mr Brougham, and that he should have done more by contacting or arresting Mr Brougham. His explanation for failing to arrest Mr Brougham, namely that he felt [Giles Van Colle] had not made a sufficiently clear and positive identification of Mr Brougham is, as he now accepts, unsatisfactory in the circumstances. In his evidence at trial he accepted in cross‑examination that this had been a serious threat, that it involved the threat of physical danger, that it disclosed an offence of witness intimidation, and that it indicated a risk to [Giles Van Colle’s] life. He also conceded that he should have appreciated this at the time. In allowing himself to be dissuaded from a more positive response to this threat by what he regarded as a doubtful identification [Counsel for the Chief Constable] submits, as DC Ridley himself accepted in evidence, that DC Ridley made an error of judgment. The judgment he exercised, however, related only to whether he had reasonable grounds to arrest Mr Brougham, to charge him with criminal offences relating to his interference with witnesses, and to prosecute him successfully in connection with such charges. It is clear on the evidence, and DC Ridley himself accepted it, that he did not give any thought at all to [Giles Van Colle’s] safety and to the need for steps to be taken to protect him in the light of the threat which had been made.”
37.  As to the fires on 28 and 29 October, the High Court found:
“26. Given the seriousness of these incidents, [Mr. P]’s distress and his suspicions that Mr Brougham was behind the fires, further and prompt investigation and action by DC Ridley was called for. In this I find myself in agreement with the [Panel’s] conclusions that DC Ridley failed to respond to an escalating picture of intimidation involving two prosecution witnesses in the same case, and in particular that he failed to analyse carefully the available evidence, both individually and with others through proper channels of line management. These conclusions are accepted in this trial as correct and DC Ridley acknowledges that the report to him of these fires should have prompted an immediate response, but that he failed to act and failed to consider protection. These events in my view called for a pro-active approach; an investigation and analysis of the possible links between the various incidents which had, by early November, been reported to him by the witnesses. Questions should have been asked of the other prosecution witnesses [Mr A and Mr H], and information re the fires on 28 and 29 October shared with the Van Colles, all of which would have elicited important information about the nature and extent of Mr Brougham’s activities and would then have required an assessment of the need for witness protection for both [Mr. P] and [Giles Van Colle] and the appropriate steps to be taken. If that had been done it is likely in particular, in my view, that [Giles van Colle] would have reported the fire to his own car on 24th September, especially after his insurers reported their findings that it had been started deliberately. Instead, the matter was understandably regarded by [Giles Van Colle] and his parents as wholly unconnected with Mr Brougham. Even when [Giles Van Colle] raised with his mother whether the deliberate fire to his car, as found by the insurers, could be linked to Mr Brougham’s threats, she stated in her evidence that she had merely observed to him that they had been watching too much television .... That it was for the officer in the case, and not the witnesses themselves, to evaluate all the material information and make an informed assessment of the risk and the need for protection is clear from the evidence, not least from DC Ridley himself in accepting that it was to him that any witness who had suffered intimidation would primarily look for support ... 27. ... Viewed objectively, at the time these events were unfolding, by late October or early November a disturbing pattern of behaviour was emerging, which was capable of being identified with appropriate and reasonable enquiries by the officer in the case. It called for immediate action. There was none. Meanwhile, it appears that on 5th November DC Ridley was seconded to an urgent murder inquiry ....”
38.  As to the telephone call of 9 November, DC Ridley confirmed in evidence that he intended to arrest Mr Brougham on witness intimidation charges after taking Giles Van Colle’s statement but that the latter’s safety had never been in his mind. The High Court noted the special position of those required to be prosecution witnesses at criminal trials and the contents of the Hertfordshire Constabulary’s Witness Protection Policy (“the Protocol”). While the level of protection to be given obviously depended on the circumstances, the fact that the witness was also the victim was a factor which might give rise to an increased likelihood of intimidation. In this respect, it concluded:
“37. Whilst particular measures are clearly a matter of judgment for the individual officer in any given situation the essential requirement, reading this policy as a whole, is for police officers to consider and assess all the circumstances and the risk in any particular case, in order to reach an informed decision as to the need for protection and the level of protection required for the witness or witnesses affected. The very existence of this policy indicates that the Defendant recognised that the police had a duty to protect witnesses who are the victims of intimidation. It is therefore a matter of regret, as is clear from DC Ridley’s evidence at this trial, that he had throughout been wholly unaware of the policy and the guidance contained within it. In reply to questions from the judge he also agreed that he had had no training in relation to the contents of the policy or about witness protection generally. It appears that the policy was placed on the Hertfordshire Constabulary intranet but DC Ridley had received no instructions about it or about following the guidance it contained. He therefore accepted that he had not had regard to its contents when dealing with this case ....”
39.  On 24 April 2007 the Court of Appeal unanimously rejected the Chief Constable’s appeal. The Court of Appeal noted that DC Ridley’s actions were to be judged without hindsight and on the basis of the information which was available to him or would have been available to him if he had taken all proper steps at the time.
40.  The Court of Appeal agreed with the High Court and the Panel that the telephone calls of 13 October put “a different complexion on the case” and that DC Ridley ought to have investigated further. DC Ridley’s failure to contact or arrest Mr Brougham after taking the statements on 19 October 2000 was not a “mere error of judgment, but a failure on the part of DC Ridley as a professional police officer to carry out his duties properly” where there was evidence of intimidation of a witness. The Panel, comprising experienced police officers, had not judged DC Ridley with hindsight but on the basis of the information available to him at the time.
41.  As regards the fires on 28 and 29 October 2000, the Court of Appeal, in agreement with the High Court and the Panel, found that DC Ridley was in “a unique position ... with the fullest picture of the developing situation” and had failed to assess the information about the two fires in the context of the previous threats and intimidation: this was not a mere error of judgment but “a failure on the part of DC Ridley as a professional police officer to carry out his duties properly by investigating the fires further.”
42.  As to the failure to act after the threatening phone call of 9 November 2000, the Court of Appeal agreed with the Panel noting that the Chief Constable had always accepted that DC Ridley should have acted with greater urgency after this call was reported to him.
43.  The Court of Appeal agreed with the High Court’s review of, and reliance on, the Protocol: while DC Ridley may not have been informed or trained in use of the Protocol, the acts or omissions of the police had to be judged on the assumption that the officer concerned had been provided with appropriate guidance so that the High Court was correct in finding that the acts or omissions of DC Ridley had to be judged in light of the Protocol.
44.  The Court of Appeal also agreed with the High Court as to the principles governing the Osman test, the Court of Appeal relying expressly on the judgment of Auld J in R(Bloggs61) v. Secretary of State (cited above).
45.  Applying those principles, the Court of Appeal found that there was indeed a real and immediate risk of which DC Ridley ought to have been aware, given: the telephone calls of 13 October (he should have appreciated that it was Mr Brougham); the fires in Mr P’s car and premises (given the previous connected events, reasonable enquiries at the time could have yielded the later forensic confirmation that it was arson); the threat to Giles Van Colle on 9 November (in view of the existing threats and events); the fact that DC Ridley accepted that throughout the relevant time he did not give any thought to the need to protect Giles Van Colle; and the failure to give DC Ridley instruction on the Protocol. The Court of Appeal rejected the argument that this put an excessive burden on the police and concluded that:
“94. In short we do not disagree with the judge’s conclusion, which was consistent with that of the [Panel], that the police should have taken action to protect [Giles Van Colle]. They should have known that there was a real risk to his life and that the risk was and would remain immediate until the date of Mr Brougham’s trial. In these circumstances they should have done all that could reasonably have been expected of them to minimise or avoid the risk. ... we conclude that ... the judge was correct to hold that the police were under a duty to take preventive measures in relation to [Giles Van Colle] and that they were in breach of that duty and therefore acted incompatibly with [Giles Van Colle’s] right to life under Article 2 of the Convention.”
46.  The Court of Appeal again agreed with the High Court that the protective measures that were reasonably open to DC Ridley could have had a real prospect of altering the outcome and avoiding Giles Van Colle’s death. DC Ridley had accepted that, if he had complied with the Protocol, there would have been a real prospect that Giles Van Colle’s life would have been saved and, indeed, that it was more likely than not that his death would have been avoided had the relevant steps been taken. If the police had acted as they should have done, it was highly likely that Mr Brougham’s bail would have been revoked, that he would have been remanded in custody and that Giles Van Colle would not have been murdered.
47.  In the circumstances, the police had been in breach of their duty by failing to take the relevant steps and their failure was incompatible with the right to life under Article 2 of the Convention. It was unnecessary to deal with the applicants’ claim under Article 8 of the Convention. The Court of Appeal reduced the damages awarded to the deceased’s estate and to the applicants.
48.  On 30 July 2008 the House of Lords unanimously allowed the appeal of the Chief Constable. In the same judgment they also decided a parallel appeal concerning reported threats to the police where the victim claimed damages under the common law alleging a negligent failure by the police to protect him (Smith (FC) v. Chief Constable of Sussex Police ([2008] UKHL 50).
49.  Lord Bingham considered that the scope of the Osman obligation to protect lay at the heart of the appeal. Each “ingredient” of paragraph 116 of the Osman judgment was of importance. In examining the various pleadings on the question, Lord Bingham noted that the State relied on In re Officer L ([2007] UKHL 36) which pointed out that “the test of real and immediate risk is one not easily satisfied, the threshold being high” and he added that “I would for my part accept that a court should not lightly find that a public authority has violated one of an individual’s fundamental rights or freedoms, thereby ruling, as such a finding necessarily does, that the United Kingdom has violated an important international convention”. He saw force in the submission that the test formulated by the Strasbourg Court in Osman was “clear and calls for no judicial exegesis”. In addition, in its Osman judgment, the Strasbourg Court had “roundly rejected” the submission by the State that the relevant act had to amount to gross negligence/wilful disregard of the duty to protect life. He continued:
“Such a rigid standard would be incompatible with the obligation of member states to secure the practical and effective protection of the right laid down in article 2. That article protected a right fundamental in the scheme of the Convention and it was sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge.”
50.  In its formulation of the “real and immediate risk” test the Strasbourg Court emphasised what the authorities knew or ought to have known “at the time”. For Lord Bingham, this latter phrase was a “crucial part” of the test since, where a tragic killing occurred, it was all too easy to interpret the events with the benefit of hindsight and that was what the Court of Appeal had done. Moreover, Lord Bingham also agreed that the Osman test depended not only on what the authorities knew but also on what they ought to have known so that:
“stupidity, lack of imagination and inertia did not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further enquiries or investigations: it is then to be treated as knowing what such further enquiries or investigations would have elicited.”
51.  However, the lower courts had misdirected themselves in considering that a witness was in a special category of vulnerable person at a special and distinctive risk, in attaching weight to the Protocol and in treating the Osman test as lowered in such a case. The Strasbourg Court had set down one test in Osman and Lord Bingham cited with approval Lord Carswell in In re Officer L (cited above) who had pointed out that “the standard is constant and not variable with the type of act in contemplation”. Moreover, the Court’s case-law had demonstrated that the Osman test had been applied in situations widely different from the present. Accordingly, the Osman test remained the same and the central question was whether DC Ridley, making a reasonable and informed judgment on the facts and in the circumstances known to him at the time, should have appreciated that there was a real and immediate risk to the life of Giles Van Colle and that could only be answered in the light of all the circumstances of any particular case.
52.  Since the lower courts had misdirected themselves on the Osman test, Lord Bingham reviewed the facts and noted the following 11 factual matters: Mr Brougham was charged with minor offences and a custodial sentence was improbable; Mr Brougham’s record was that of a petty offender and, with only a hint of violence in his record, he could not have appeared to be prone to violence; there was nothing to suggest at the time that he had criminal associates; Mr Brougham’s first approach to Mr H was not reported to DC Ridley (it was thus irrelevant); Mr Brougham’s approach to Mr P on 10 August was reported to DC Ridley and, while irregular, it was not suggestive of violence to Mr P, let alone to Giles Van Colle; the fire which damaged Giles Van Colle’s car on 24 September was not reported to DC Ridley (it was thus irrelevant); the bribe offered by Mr Brougham to Mr P on 13 October was serious criminal conduct but it did not suggest, and might well have appeared inconsistent with, violence and could not have been interpreted as any threat to the life or security of Giles Van Colle; as to the telephone call to Giles Van Colle on 13 October, the latter took some days to call DC Ridley and, in the context of the case, the prospect of the threat being implemented could reasonably be seen as remote; Mr Brougham’s offer of a bribe to Mr A on about 17 October was not reported to DC Ridley (it was thus irrelevant); the fires concerning Mr P were considered to have been accidental and, even if attributed to Mr Brougham, it would have suggested that he was willing to go to some lengths to avoid conviction but hardly a threat to the life or security of anyone, let alone Giles Van Colle. While the post-murder investigation found that those fires were deliberate, it was unrealistic to suppose that, at the time, a minor case of theft could have been thought to merit an intensive investigation of the kind which properly followed a murder; the telephone call made by Mr Brougham on 9 November 2000 was unpleasant in content and aggressive in tone, but it contained no threat.
53.  While considerable emphasis had been laid by the applicants on the Panel’s findings, Lord Bingham noted that the Panel’s conclusions lacked any suggestion that DC Ridley should have apprehended any imminent threat to the life or safety of Giles Van Colle, a factor underlined by the Panel’s references to errors of judgment and the modest penalty. Moreover, the fact that DC Ridley confirmed in evidence that the question of witness protection never came to his mind was plainly explained by the fact that he did not perceive a real and immediate threat to the life of Giles Van Colle and he was proposing to arrest Mr Brougham on 23 November on witness intimidation charges only. Lord Bingham continued:
“The question is whether, making a reasonable and informed judgment on the facts and circumstances which were or should have been known to him at the time, he should have apprehended such violence. The fact that [Giles Van Colle] was a witness in a forthcoming Crown Court trial was of course a relevant fact, but not one of great weight having regard to the minor character of the charges and the unlikelihood of a severe penalty. Approaching the matter in this way, and applying the standard Osman test, I cannot conclude that the test was met in this case. If a comparison be made with Osman, the warning signs in this case were very much less clear and obvious than those in Osman, which were themselves found inadequate to meet the test.”
54.  As to the applicants’ complaint under Article 8, Lord Bingham noted that the police did not interfere with Giles Van Colle’s right to respect for his family life and his personal autonomy so that any complaint had to rest on DC Ridley’s failure to prevent the interference by Mr Brougham, and Article 2 was clearly the Article under which this claim was to lie.
55.  Lord Hope, in his judgment, agreed that:
“66. The extent of the positive obligation has been defined [in Osman]. The relevant part of that paragraph has been quoted by Lord Bingham .... It declares that the court must be satisfied that the authorities knew or ought to have known “at the time” of the existence of “a real and immediate risk to the life” of an identified individual from the criminal acts of a third party. If they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk, the positive obligation will have been violated. In In re Officer L ... Lord Carswell said that the real and immediate test is one that is not readily satisfied, the threshold being high. I read his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it. We are fortunate that, in the case of this vitally important Convention right, the Strasbourg court has expressed itself in such clear terms. It has provided us with an objective test which requires no further explanation. The question in each case will be whether on the facts it has been satisfied.
The Osman test tells us that the facts must be examined objectively at the time of the existence of the threat, and that the positive obligation is breached only if the authorities knew or ought to have known at that time that it was a threat to life which was both real and immediate. In this case everything depends on what DC Ridley knew or ought to have known as the events unfolded before him. ...”
56.  Adopting the reasoning of Lord Bingham, he considered that the Osman test had not been met. Giles Van Colle was not in a special category to whom a lower threshold applied: the Osman test was not variable and the first sentence of paragraph 116 of the Osman judgment defined the limits of the positive obligation on the State to be observed in every case.
57.  Lord Phillips concurred with Lord Bingham, adding that one matter was left unclear by Osman which was the test to be applied when deciding whether the police “ought to have known” of the risk to life. There were at least two possibilities: that they “ought to have appreciated on the information available to them” or they “ought, had they carried out their duties with due diligence, to have acquired information that would have made them aware of the risk”. Lord Phillips considered that the former was the meaning intended but, even applying the latter, there was no valid basis for concluding that the police ought to have known that there was a real and immediate risk to the life of Giles Van Colle.
58.  Lord Brown was in full agreement with Lord Bingham. He noted that threats to witnesses were a problem: Home Office/Association of Chief Police Officers (“ACPO”) statistics showed that 10% of crimes led to incidents of intimidation. He underlined, however, that the Osman test was “clearly a stringent one” which was not easily satisfied, as recognised by the Osman judgment itself. It was “a constant one” which did not vary depending on the circumstances so that the fact that Giles Van Colle was a witness was undoubtedly relevant but only to the extent that realistically it increased the likelihood that Mr Brougham would actually carry out his threat to kill or seriously injure him. Nothing on the facts compared to the increased risk to life of political journalists considered in Kiliç v. Turkey (no. 22492/93, ECHR 2000-III). It was an indication of the stringency of the Osman test that, even on the comparatively extreme facts of Osman, the Strasbourg Court found its own test not to be satisfied.
59.  Lord Carswell agreed with Lord Bingham and Lord Hope’s judgments.